Evidence provided by Constable Mark Kowalyk in a drunk-driving case was so troubling, Ontario Court Justice Melvin Green rebuked the rookie for his “indifference to the truth.”

By the time he stepped off the witness stand, even OPP Const. Mark Kowalyk had to admit there were serious problems with his testimony.

His written report that the driver he arrested had “cut off motorists” while speeding down the 401? False, Kowalyk conceded in court.

False, too, was his report in an OPP detachment log book stating he had checked in on the arrested driver in his cell every 15 minutes, as required; video played at the trial showed otherwise.

Indeed, Kowalyk’s evidence in the case against Delon Joseph, accused of two impaired-driving offences, was so troubling Justice Melvyn Green this week rebuked the rookie officer for his “indifference to the truth.”

In an October 28 Ontario Court of Justice ruling, Green stated that aspects of Kowalyk’s testimony were “increasingly preposterous,” at one point calling part the officer’s account “fraud.”

“More than once Kowalyk made factual assertions under oath from which he was forced to resile in the face of contrary video evidence,” Green wrote.Joseph, who faced two impaired driving charges, was found not guilty.

Kowalyk could not be reached for comment. OPP spokesperson Sgt. Peter Leon said the officer would not be responding on the advice of his supervisor.

Despite the seriousness of the judge’s ruling — and the fact that it uncovered the false recording of a prisoner check, an offence punishable under the Police Services Act — the OPP is refusing to say if it is investigating the officer’s conduct.

Following a Star investigation into police who lie in court http://www.thestar.com/news/investigations/police_who_lie.html, Ontario’s Ministry of the Attorney General produced rules requiring the Crown to report cases where a judge has found, or the judge suspects, that an officer lied. The director of Crown operations will then review the matter and decide if it should be forwarded to the police force in question, which may prompt an internal probe.

But the ministry is refusing to say if that occurred in this case. The Crown, Crystal Tomusiak, referred questions to ministry spokesperson Brendan Crawley, who said in an email that “the ministry does not comment on whether such reviews are undertaken in specific matters, or the results of any such review.”

Asked to justify why the ministry could not provide information on individual cases, Crawley said: “We will not be making any further comment.”

Leon would not say whether the case had been sent to the OPP by the ministry. “I’m not in a position to confirm or deny,” he said.

The secrecy leaves the public in the dark about what is being done to ensure lying officers are held to account.

Anthony Moustacalis, president of the Criminal Lawyers’ Association, said he understands that, at times, investigations involving personnel must be held in private.

However, “at some point, even respecting individual rights, there needs to be public access and openness about the fact that specific concerns were raised, who they involve, if they have been resolved and how they have been resolved,” he said.

The case dates back to the morning of April 14, 2013, when Kowalyk and a fellow OPP officer observed Joseph driving east on Highway 401. Joseph was speeding at a rate of 152 kilometres per hour, according to Kowalyk.

The officer pulled Joseph over, and later said he observed the smell of alcohol, red eyes, and that Joseph was fumbling with documents in his car, all suggesting to Kowalyk that Joseph was impaired. Shortly thereafter, Kowalyk administered a roadside breathalyzer test which twice produced an “error” report. Joseph later blew over the legal limit in a breathalyzer test at the station.

Kowalyk arrested Joseph for impaired operation of a vehicle, and brought him into an OPP station near Keele St. and the 401.

Green found numerous problems with Kowalyk’s evidence during the trial, including the officer’s note taking, which missed key information — including the fact that he tried and failed twice to get a reading from the roadside alcohol test.

Though the officer acknowledged that information “would be really important,” he could offer no satisfactory reason why he did not include that information in his notes, Green wrote.

Green also chastised Kowalyk for reporting in a written “synopsis” of the event that Joseph was “cutting off motorists” during the police pursuit. At the trial, Kowalyk admitted this was, in fact, “just not true.”

“In re-examination, Kowalyk explained that he had used a template in preparing the synopsis in the case before me and, apparently, had not bothered to edit it to conform to the allegations pertinent to the defendant’s investigation,” Green wrote.

The judge also criticized Kowalyk for writing in a prisoner log book that he had conducted a physical check of Joseph inside the cell every 15 minutes — a protocol required for prisoner safety. Motion-activated video surveillance showed that neither Kowalyk, nor any other officer, checked on Joseph for over 40 minutes.

The failure to conduct these checks, or to correctly log their occurrence, “is a serious violation that could result in a prosecution of the offending officer” under the Police Services Act, Green wrote.

It is outrageous that Judge Melvyn Green did not charge the officer with perjury. If officers are allowed to twist things a little to get the “right” decision then we are all at constant risk of improper incarceration.

The judge having failed to do the right thing for our protection, shouldn't the prosecutor be encouraged to press charges?

If a lie goes around the world before the truth has had a chance to put its pants on, that is doubly so when the liar is a police officer.

Fellow officers flinch. Headlines are a certainty. The community becomes a little bit more jaundiced. At the same time as they demean their profession, lying police officers shake our collective faith in the justice system.

In the latest instance to come to light, an Ontario Court justice observed elegantly, but damningly, that a police witness had shown “an indifference to the truth” in his courtroom testimony.

In his decision on Oct. 28, Justice Melvyn Green said that aspects of OPP Const. Mark Kowalyk’s sworn testimony were “preposterous” and amounted to a “fraud.”

As is often the case when an officer pillages the truth, the offence was relatively piddling — an impaired driving charge against a Toronto man, Delon Joseph. Nonetheless, Green’s ruling constitutes a stinging setback for a province that so recently moved to rein in police duplicity.

Less than two years ago, former attorney general John Gerretsen ordered Crown prosecutors to report adverse judicial findings about police witnesses to their superiors to determine whether a police investigation was warranted. The policy was a laudable response to a Toronto Star exposé of a hundred instances of police deception in the courts.

Few expected the new policy to eliminate police lying overnight, yet hope abounded. Publicizing testimonial misconduct and disciplinary action that flows from it would surely render police more accountable and deter future misconduct.

Well, perhaps not. The Joseph case has exposed yawning holes in the ministry’s vaunted net of accountability and made prophets of those who warned that the Gerretsen remedy was incomplete.

To be clear, there is no epidemic of police lying. Most police officers are either uninterested in winning by deception or are unwilling to risk the consequences of being caught out.

Yet, a cursory search of court judgments using terms such as “untruthful,” “fabricated,” “collusion” or “misleading” reveals the extent of the problem. Some officers embellish, stretch or shade the truth to conceal their investigative errors or to enhance the chances of securing a conviction.

The Gerretsen policy specifically directed prosecutors to inform a superior if a judge makes a finding or suspects that an officer falsified evidence. The director of Crown operations is expected to review the matter and decide if it should be forwarded to the police force in question, potentially prompting an internal probe.

Is the procedure working? Flash forward to the Joseph case. The ministry has refused to reveal whether Green’s comments resulted in an internal report. Discouragingly, ministry spokesman Brendan Crawley asserted that, “the ministry does not comment on whether such reviews are undertaken in specific matters, or the results of any such review.”

Sure enough, one looks in vain for a single reported instance of the Crown actually investigating and reporting a lying officer to his police force, let alone a force disciplining such an officer.

In other words, enforcement of the policy has fallen prey to the ministry’s legendary penchant for secrecy; an atmosphere of concealment that covers everything from requests for courtroom publication bans to instances of prosecutorial misconduct.

While there might be an initial need for privacy pending the results of an investigation, the need for public accountability makes that time period very short.

We can only assume that Gerretsen’s promise has proved disappointingly hollow. Where is the accountability? What guarantee does the public have that the Crown does forward adverse judicial comments to police, and that they are being properly investigated?

Several reforms are needed if we are going to defeat the scourge of police lies.

While dishonest police officers are increasingly detected through enhanced video technology — such as in-cruiser cameras and video surveillance in police stations — more can be done. Ontario needs to join other jurisdictions where officers are equipped with body-worn cameras that record every element of an encounter or incident.

Appellate courts can also play a valuable role by permitting trials to hear evidence that police witnesses previously lied under oath. Currently, there remain too many jurisprudential obstacles to exposing an officer’s track record for dishonesty.

And finally, there is the need for genuine transparency. The ministry ought to want the world to see that its proactive stance to combat police lying is obtaining positive results.

A transparent process would also encourage systemic change within police forces and vindicate officers who recognize that in a fair criminal justice system, their word is an irreplaceable bond.